Signs that You Have a Personal Injury Case
These Factors Determine Whether You Have a Winnable Personal Injury Claim
In any given year, millions of Americans suffer harm from motor vehicle crashes, slips and falls, workplace accidents, defective products, dog bites, and medical errors. But only a tiny percentage of these incidents turn into personal injury cases. And even get resolved through a trial by jury.
The critical reason for so few lawsuits is that plaintiffs’ personal injury lawyers – us attorneys representing accident victims – are selective about the cases we accept. Indeed, some attorneys take less than 10% of the contacts received. We understand that contrary to how some insurance companies and big businesses portray personal injury attorneys, winning a negligence claim under tort law is challenging.
This article explains the factors plaintiffs’ lawyers analyze when determining if you have a personal injury case. Understanding the elements of a cause of action and how to collect settlements, judgments, and verdicts can help you answer if you have a claim.
Keep reading for more information on whether you have a viable injury case.
Then call our personal injury law firm at 804-251-1620 or 757-810-5614. We handle accident claims in Virginia and Maryland, and regularly get top-dollar auto accident settlements for our clients.
Seven Things to Think About Before You Bring a Personal Injury Case
Were You Injured?
You must have suffered a bodily injury, experienced sudden shock and fright, or developed disease from acute or long-term exposure to toxic chemicals or substances to have a solid personal injury lawsuit.
Examples of injuries or conditions that meet this part of the test to determine if you have a case include the following:
- A negligent driver runs a red light and crashes into you, resulting in a torn rotator cuff, herniated disc, and traumatic brain injury (concussion and post-concussion syndrome).
- You develop depression, anxiety, and post-traumatic stress disorder (PTSD) after a neighbor’s dog attacks you, resulting in permanent nerve damage and scarring.
- You receive a cancer diagnosis (mesothelioma) after working at shipyards and as a seaman for years.
- Your orthopedic surgeon amputates the wrong body part, causing permanent impairment.
- Your firearm discharges unintentionally, with the bullet striking your foot.
In contrast, an incident causing no physical or mental harm will not lead to a viable injury case.
For example, suppose a negligent driver strikes you. However, they do so at a low speed, and you feel no pain and do not require medical treatment.
You may have an insurance claim for property damage for the physical destruction of your car.
But your personal injury case is weak.
Fault: Is Someone Else Liable for Your Injury?
Suffering harm is a start.
But you must prove more.
Specifically, to have a case, you must show that someone else’s acts, omissions, or errors caused your injury.
Generally, there are three ways to show that another person, company, or government entity is liable for damages:
- Negligence: Negligence is the basis for most personal injury cases. Typically, a person is negligent when they fail to act as a “reasonably prudent person” would in the same situation. You can learn more about the elements of a negligence claim here.
- Strict Liability: In some cases, another person or company is liable for your injuries, even if they did nothing wrong. For example, some courts have held that blasting, crop dusting, owning wild animals, or storing flammable liquids are so dangerous that the person performing the activity must pay for damages they cause. This legal theory of liability is known as strict liability.
- Intentional Torts: The common law provides causes of action and a remedy for bodily injury caused by another’s intentional acts. For example, you may have a claim for assault, battery, or false imprisonment.
These are the three main theories of liability in personal injury cases. But consumer protection laws are available in lawsuits alleging bodily injury from defective products or pharmaceuticals.
Are You in a Contributory Negligence State?
In some states, proving liability for bodily injury requires you to go one step further. You must also show that you did not contribute to the accident.
Jurisdictions with this requirement are known as contributory negligence states. And although there are only a handful of these statements, Virginia and Maryland follow this legal doctrine.
Do You Have Damages Recoverable under the Law?
So, you suffered an injury, and someone else caused it.
Is that enough to have a personal injury case?
Although you may technically have a claim, whether you should pursue personal injury litigation also depends on your damages and whether you can recover money for them. Only put yourself through this process if you will likely receive a damages award.
Types of personal injury damages you may recover include the following:
- Past medical expenses (treatment rendered through the settlement or verdict date)
- Future medical expenses (even if you reach maximum medical improvement for the bodily injuries (MMI), you may require ongoing treatment, including prosthetics or in-home health care)
- Lost wages due to disability from the injury or time missed for physical therapy, doctor visits, or surgical procedures
- Diminished earning capacity (for example, you may lose out on promotions because you have permanent restrictions)
- Permanent impairment (you may qualify for compensation for scarring, disfigurement, the complete loss of the injured body part, or loss of use of the body part)
- Punitive damages
You may need expert testimony from doctors, surgeons, life care planners, vocational counselors, and economists to prove these damages at trial or detail them in a pre-mediation statement.
Will the Litigation Expenses and Costs Outweigh the Potential Recovery from the Lawsuit?
Bringing a lawsuit through trial is expensive.
For example, a car accident case may cost $10,000 to $30,000, depending on the injury’s complexity.
Product liability, medical malpractice, and toxic tort claims are even more expensive because you typically need more expert witnesses who charge hourly. For example, some third-party lawsuits I have handled cost $100,000 or more in expert witness and filing fees.
In addition, workers comp insurers, medical providers, and health insurance carriers may assert a lien and subrogation rights against any personal injury recovery.
Therefore, some personal injury lawyers will only accept legal representation if they can recover a preset benchmark through litigation – or at least think so.
Deciding if you have a case worth pursuing requires weighing the likely outcome versus the money you must spend to get it.
Collectibility: Can You Recover Money from the Defendant or An Insurance Policy?
You can win your personal injury case if you can prove the items discussed earlier in this article.
But it will be a meaningless “paper” win unless the defendant has assets or insurance to collect a court judgment or verdict.
Therefore, deciding whether you have a good personal injury case requires you (or your lawyer) to evaluate if you will collect any judgment if awarded or if the defendant has sufficient assets or insurance policies to pay a settlement demand.
Typically, collecting damages is possible in a personal injury case based on medical negligence or product liability (because big hospitals and businesses often have significant assets or insurance).
However, collecting damages for catastrophic injuries (such as a spinal cord injury resulting in the need for a cervical or lumbar fusion) in auto accident cases can be a problem if the defendant driver has minimum policy limits. Or if someone else owned the vehicle and loaned it to the driver, the named insured does not have enough insurance.
Therefore, you must use pretrial discovery to determine all types of insurance available to get paid.
Are There Procedural Defenses to the Accident Claim?
Both statutory and common law provide defenses that may bar you from receiving money through a lawsuit, even if the other party caused the harm.
Two common procedural defenses to accident claims include:
- Workers comp as the exclusive remedy: If your employer’s unsafe working conditions, a supervisor, a co-worker, or an independent contractor whose trade is similar to your employer caused the injuries, you may be limited to a workers compensation case. The law limits your recovery to the workers comp benefits provided by statute, and your personal injury lawsuit may get dismissed on a plea in bar.
Top-Rated Attorneys to Help You Decide if You Have a Personal Injury Case
It is natural to feel angry when someone else harms you.
And it is only fair to want the person or company that caused the damage to make you whole.
But rushing into civil litigation may be a mistake, causing more stress than the recovery is worth. And you should evaluate the likelihood of recovering money before pursuing a personal injury case.
We aim to get you a fair personal injury settlement as efficiently and as soon as possible based on the likelihood you can win at trial on liability, the number of provable damages, and the defendant’s insurance coverages and assets.
Call us now to find out if you have a case: 804-251-1620 or 757-810-5614.
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